Page:Harvard Law Review Volume 1.djvu/261

Agency—Ratification.—A, a collector employed by B, deposited in the defendant bank, without the knowledge of B, certain sums of money, designating as payee in the bank register “B, by A.” Six certificates of deposit at different times were thus issued to A, payable to the order of B, and all were subsequently paid to A, upon being indorsed “B, by A.” The certificates of deposit were never in B’s possession, and it did not appear but that each new certificate was procured partly or wholly with funds derived from payment of the previous one. Upon A’s death, B, for the first time learning the facts, sued the bank for the total face value of the certificates. Held (two judges dissenting) — The depositing and the withdrawing were distinct acts, so that one can be ratified without the other. The plaintiff is entitled to the face value of the certificates. Honig v. Pacific Bank, 15 Pac. Rep. 58 (Cal.).

Agency—Ratification.—The superintendent of the cloak department in a dry-goods store had authority to purchase for that department, and all invoices and correspondence relating to it were at once turned over to him. The plaintiff’s salesman applied to him for orders, and was told that the stock was already larger than the firm allowed, but that, if no statements of account would be sent to the firm, goods might be sent on with invoices as usual, and he would pass the invoices as fast as he could. The plaintiffs were informed of the scheme and assented to it. Large quantities of goods were sent under this arrangement, and many of them disposed of in the usual course of trade. When the defendants learned of these transactions they found it impossible to distinguish goods that had not been paid for, and they were sold in the usual way, but other goods afterward received from the plaintiffs were returned. It was held that selling the goods under these circumstances was not a ratification of the acts of the superintendent, and the plaintiffs could not recover for goods bargained and sold, but there was an intimation that they might have other remedies. It was further held that mailing invoices to the defendants’ address did not affect them with notice that the goods had been sent. Schutz v. Jordan, 32 Fed. Rep. 55.

Agency—Usury—Reservation of Agent’s Commission.—The plaintiff’s agent, in negotiating a loan to the defendant, took a note bearing the highest legal rate of interest, and reserved a small portion of the money lent as compensation for his services. It was not shown that the principal knew of this charge. Held — “The authorities are overwhelming that the contract is not usurious.” Williams v. Bryan, 5 S. W. Rep. 401 (Tex.).

The Court say: “Whether in a transaction of this character, a payment by the borrower to the agent of the lender of a fair compensation for his services in effecting the loan, though with the knowledge and consent of the latter, should in any case be held to make the contract usurious, may be doubted.” The loan was held to be usurious where an excessive compensation was retained by the agent with the knowledge of the principal, in Pfenning v. Scholer, 10 Atl. Rep. 833 (N.J.). It is held in Barton v. Farmers’ & Merchants’ Nat’l Bank, 13 N. E. Rep. 503 (Ill.), that a promissory note providing that in case of non-payment when due, if placed in the hands of an attorney for collection, an attorney’s fee of $30 shall be paid by the maker, is not usurious. It cannot matter that the contract for compensating the attorney is executory, not executed.

Certificate of Deposit—Statute of Limitations.—A certificate of deposit is a promissory note, and recovery is barred after the lapse of six years from its date. Mitchell v. Wilkins, 33 N.W. Rep. 910 (Minn,).

The Court say that, being promissory notes, they should follow the same rules for the sake of uniformity. The fundamental error was in holding notes payable “on demand,” to be due immediately without demand. And there seems to be no good reason for extending the principle to certificates of deposit, but three reasons for not so doing: (1) They contain a stipulation “to be paid on the return of the certificate properly endorsed,” which, being part of the contract should be heeded just as “on demand” should have been in the case of